On 1 December 2011, the European Court of Justice ("CJ") rendered its decision in Eva-Maria Painer v. Standard Verlags GmbH et al. This case deals with a number of questions referred by the Handelsgericht Wien (Austria) regarding the unauthorised use of portrait photos in newspapers. This legal alert addresses the CJ's answers concerning the criteria for copyright protection of a work and the scope of protection.

Gradual Harmonisation Of The Threshold Of Originality

The objective of the EU Information Society Directive is to harmonise certain aspects of copyright, but does not provide for harmonisation of the threshold of originality, the concept to define a copyrighted work. Although considered to be left up to the member states to define (as is illustrated by art 17 Designs Directive), the CJ in case after case is nevertheless harmonising the concept of copyright protection. First, by defining the originality threshold for each type of work:

  • In case C-5/08 Infopaq International of 16 July 2009 a first step towards harmonisation was taken, when the CJ considered in respect of a text excerpt consisting of 11 words, that copyright applies only to a subject matter which is original in the sense that it is its author's own intellectual creation.
  • In case C-393/09 BSA of 22 December 2011 the CJ confirmed that a graphic user interface of a computer program can be protected by copyright if it is its author's own intellectual creation. That criterion cannot be met by components of the work which are differentiated only by their technical function.
  • In case C-403/08 and C-429/08 Football Association Premier League and Others of 4 October 2011, the CJ further specified that works that leave no room for creative freedom for the purposes of copyright, such as football matches, cannot be regarded as copyright protected works, thus setting the limit for what is and what is not protected.

With yesterday's ruling, the CJ confirms that the concept of copyright protection is harmonised and that the same criteria apply to all types of works. According to the CJ, a copyright protected work requires 'an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that work'.

Scope Of Protection

The harmonisation efforts of the CJ also cover the scope of the copyright protection. In its decision, the CJ handed down an interpretation of copyright protection that is broad and equal for all categories of works. In addition, the CJ stressed that nothing in the EU Information Society Directive, or in any other directive applicable in this field, supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works.

Practical Consequences

While the case concerns portrait photos, the ruling has potential ramifications for the wider copyright sector, including architects, industrial designers and other authors whose creations are partly dictated by their technical function or where creative freedom is limited for other reasons.

Only when the different methods of implementing an idea are so limited that the idea and the expression become inseparable, is the threshold of originality not met (see BSA). In general, it has now been confirmed that the harmonised (low) threshold of originality is the only condition for copyright protection in all Member States. Moreover, all copyrighted works, also applied arts, enjoy the same protection, which should be considered broad. This means that the existing high threshold for applied arts in some Member States, such as Germany, can probably not be upheld.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.